Monthly Archives: August 2011

When President Bill Clinton was in office, he hoped to start a tradition: sitting down regularly with the nine justices of the U.S. Supreme Court.

But it never happened. According to Justice Ruth Bader Ginsburg, something came up.

“He was hit first with Paula Jones and then other things,” Ginsburg told a crowd of about 2,000 at Southern Methodist University’s Dedman School of Law in Dallas Monday, according to the Associated Press.

In her remarks, Ginsburg also lamented the polarization of the Supreme Court confirmation process, saying that she doubts she would have been confirmed if she were nominated today.

“I wish we could wave a magic wand and go back to the days when the process was bipartisan,” Ginsburg told the crowd, adding: “Today, my ACLU connection would probably disqualify me.”

Prior to her appointment as a federal judge on the DC Circuit, Ginsburg was general counsel for the ACLU, and helped found the group’s Women’s Right Project. Such a resume item would prove too controversial to win confirmation today, Ginsburg said. Even in 1993, White House officials prepping her for her Senate hearings warned her it would be a hot-button topic.

She told them: “There’s nothing you can do to get me to bad mouth the ACLU.”

If you thought the issue of individual Second Amendment rights was settled by the U.S. Supreme Court in DC v. Heller and McDonald v. Chicago– where the court held that the individual right to gun ownership trumped some local and federal gun control laws – you were incorrect.

The issue of gun rights is back again at the Court’s doorstep: the National Rifle Association has asked the Court to take up a new case and declare a constitutionally protected right to carry a gun on one’s person or in a car.

“Some judges have buried their heads in the sand and have refused to go one step further” than saying there is a right to have a gun at home, Stephen Halbrook, an NRA lawyer, told the Los Angeles Times about lower court rulings which have not gone as far and gun rights advocates would like.

The lower court Second Amendment rulings have been hailed by the Brady Center to Prevent Gun Violence. As we reported earlier, the center released a report titled “Hallow Victory?” which found that the lower courts have not used Heller and McDonald as broadly as gun advocates may have anticipated.

They say there is power in numbers. But apparently that doesn’t hold true for female Supreme Court justices – at least according to Forbes.

One year after the Court for the first time saw three women on its bench, Forbes released its list of the 100 most powerful women in the world. But there were three noticeable omissions: Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Instead, the list was filled with world political leaders, business executives, and entertainers such as Lady Gaga and Beyoncé.

Forbes blogger Meghan Casserly offered an explanation for the justices’ omission. “Justices have been long-standing list members, but with our editors’ increased awareness of scope of power, their numbers fell behind,” Casserly wrote. “They may be making decisions that affect U.S. citizens, but their international influence leaves much to be desired.”

But the female justices aren’t the only ones getting a little less love from the publication. On the last Forbes ranking of the world’s most powerful people of any gender, Chief Justice John G. Roberts, a former list member, didn’t make the cut.

As the debate heats up over what recusal standards, if any, justices of the U.S. Supreme Court should be bound by, there remains the related issue: when a justice recuses, the problematic possibility of a 4-4 tie is born.

But Indiana University School of Law Professor Gerard N. Magliocca suggested a possible solution to that problem: federal circuit judges sitting by designation on the high court when a justice sits out.

In a post on the blog Concurring Opinions, Magliocca writes: “After all, we let federal district judges sit by designation in the circuits all the time. This could be subject to some limits (only active judges, or not judges from the federal circuit whose ruling is being reviewed), the most of important of which is that the selection should be random instead of under the control of the Chief Justice. I think the judicial system might be improved if the Justices were subject to the same recusal standards that other judges follow and if there was an occasional ‘special guest star’ appearance by other judges on the Court.”

If asked where they were when the earthquake of August 2011 hit, Supreme Court Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan will have the same answer: “I was at the Court!”

The justices were not harmed, and the building was not evacuated as many other Washington buildings were, Bloomberg reports, although no one else was allowed enter the Supreme Court building following the quake. Damage to the Court’s building was minor, according to the Detroit Free Press and other reports, and included fallen plaster in the gym located on the top floor, and small shards of marble near elevators on the first floor.

Other federal courts in Washington also closed after the tremor, and most office buildings in the downtown area were evacuated, sending occupants – including lawyers at most law firms – into the streets to wait for long periods of time before making the very slow trek home via packed highways and slowed public rail systems.

Today, Washington’s courts and offices are reopening as normal. Back to work, everyone!

Pretty close to it, according to a Politico piece that predicts a Perry GOP presidential nomination will send trial lawyers’ campaign donations flowing to oppose the Texas governor.

That’s because Perry is a staunch tort reform supporter, backing a number of Texas measures that cap damages and impose court costs on losing plaintiffs.

“If this guy emerges, if he’s a serious candidate, if he doesn’t blow up in the next couple weeks, it’s going to motivate many in the plaintiffs’ bar to dig deeper to support President Obama,” Sean Coffey, a former securities litigator, told Politico. “That will end up driving a lot of money to the Democratic side.”

Perry is reportedly ready for the fight. His spokesman said the campaign was fully prepared to fight trial attorneys on a national level, adding that plaintiffs’ lawyers “feed off the system” and inhibit job creation.

“I was very lucky to be born at the right time. If I had been born a generation earlier, my arguments would have fallen on deaf ears. It was the women’s movement… that made it possible for the Supreme Court to do what it did.”

~ Justice Ruth Bader Ginsburg, speaking at a recent judicial conference in California about successfully arguing before the high court in gender-based discrimination cases when she was an attorney for the ACLU.

Justice Anthony Kennedy said the justices of the U.S. Supreme Court don’t see as many of the big money civil lawsuits as they used to. The reason? Arbitration.

“The docket seems to be changing,” Kennedy told reporters invited to meet with him during the 9th Circuit Judicial Conference Monday, according to the Trial Insider. “A lot of big civil cases are going to arbitration. I don’t see as many of the big civil cases.”

That trend is something that could continue, based on the Court’s own recent precedent. The Court’s ruling last term in AT&T Mobility v. Concepcion broadened companies’ ability to prescribe arbitration for disputes.

Washingtonians are riveted by the story of last week’s alleged murder of 91-year-old Georgetown socialite Viola Drath. Her 47-year-old husband Albrecht Gero Muth was arrested in connection with Drath’s apparent death by strangulation. A police report states that Muth said the couple had a 20-year “marriage of convenience,” and that Muth presented Drath’s family with a letter purportedly written by Drath directing the family to give Muth $150,000 in the event of her death. The authenticity of that letter is in dispute.

The couple was known for throwing lavish dinner parties for many of Washington’s elite, with Muth claiming to be an Iraqi Army general – a claim that has once and again been disputed by the Iraqi embassy.

But among the interesting things about this real-life tale of money and alleged murder is the list of dignitaries who attended parties over the years at the home where Drath was found dead last week – a list that allegedly included Supreme Court Justice Antonin Scalia, the Wall Street Journal reports. Scalia’s signature appears in a book Muth asked dinner party guests to sign.

Scalia, through a Supreme Court spokesperson, declined to comment to the Journal.

“If the Supreme Court follows existing precedent, existing law, it should be upheld without a problem. If the Supreme Court does not follow existing law and precedent, then we’ll have to manage that when it happens.”